The pace has slowed to a crawl; there are a couple more things that I know are out there that haven’t hit the docket yet, but not much. Here are a few further important and interesting filings:

The big one is Pamela Samuelson’s objection letter. The perspective is that of academic authors; the argument is extensive and carefully reasoned; the list of signers is impressive. If you have time to read only one filing in detail, make it this one.

Literary agent Stuart Bernstein filed a letter objection with some further details on the difficulty of claiming and managing Inserts. His agency submitted to the parties a spreadsheet with over five thousand separate licenses for Inserts, but noted this was only a fraction of the total.

Does anyone have any insight into the thoughts of the AAUP (Ass’n of American University Presses)? Samuelson’s submission regarding academic authors is strong, but it would have been advantageous to have a statement from the publishers as well.

Mr Grimmelmann , I employ an sole commercial agent to manage the sale and marketing of my art.

Some(Many?) authors employ agents to do much the same promote: manage and negotiate, the sale of copyright on the books that they write on an exclusive basis . Is GBS a over writing of all those thousands of individual contracts between individual authors and their freely chosen commercial agent?

The Society of Authors isn’t the first authors organisation to send a letter supporting the Settlement. ALCS (UK authors licencsing and collecting agency) wrote in support of the original version. I belong to both organisations and neither of them consulted their members before taking this action.

For those of you in the US: I believe it is possible to ask the authorities (possibly the FBI) to prosecute Google for criminal copyright infringement, but I do not know to go about it. Does anyone? Perhaps a letter-writing campaign could be organized.

The U.S. statute on criminal copyright infringement, 17 U.S.C. § 506, makes “willfulness” an element of the offense. Courts have typically held that a defendant who holds a good-faith but erroneous belief that his acts are non-infringing doesn’t act “wilfully.” Put another way, the crime requires an intent to infringe, not just an intent to copy. This isn’t a unanimous position, but it’s also the one endorsed by Nimmer on Copyright, the leading treatise on copyright in the U.S., and which is currently edited by David Nimmer (who represents Amazon in the Google Books case).

There is very little doubt that Google’s lawyers and executives genuinely believe that its scanning and indexing of books are fair use. Nor is this an unreasonable belief; based on the state of U.S. caselaw and the policies of copyright, I and many other copyright professors think they’re right, A criminal copyright prosecution against Google is almost certainly a non-starter.

“A rotten borough was one that was
represented in Parliament but that had
very few electors.”

This lack of consultation is typical. These ‘member’ organisations are effectively; rotten borough’s.

The third series of BlackAdder has an episode about rotten borough’s and a servent Ednmund Blackadder whos creaming it. It is called “Dish and dishonesty”. I re-watched it last night .
It describes the situation Now pretty well except for one thing ; there is nothing at all funny about the current story.

These are not isolated issues, this pattern of very dishonest claiming of representational status, of actively suppressing dissent or of blank denial of the existence of any dissent by authors , and in general giving the ‘members’ the mushroom treatment is normal behaviour in the Collection Society world.
In their conception they are the only ‘artist’ in the world and thus all rights are theirs. When ever they use the word, author, artist .. creative they always mean themselves.

Compulsory collective management is a right of legitimate elected governments it is not a right of rotten boroughs.

But suppose Google publishes not “snippets” but books without permission, and books that are not “orpaned,” but whose owners have proven themselves interested and locatable by opting out of the Settlement? I believe this to be very likely.

Users created an account that was specifically said not to be a “Google Partner” account, and the prose said if you entered your books in this account they would not be listed in Google Book Search, as well as not being scanned for the Library project. I created an account, which is still there (I checked this afternoon). Google still has a web page somewhere saying they will not scan books opted out of Library scanning; I ran across it a couple of weeks ago. I think it’s under their public description of the Library project. I think Gillian Spraggs found it recently.

I entered all eight of my titles in a timely fashion, along with my name as author and the ISBNs. I entered three before they were even sent to the printer: No one but me (and my husband) had access to those book files or hard copies of the pages at that point. However, I later noticed that the account (which still exists) does not in fact list the dates the books were opted out, at least not to the user’s view. Google could therefore claim they scanned them before I got around to entering the data.

Danny Sullivan, the Search Engine Watch journalist, told me he could get inside information from Google, and I sent him a series of questions. (He could not believe Google would knowingly violate copyrights.) He got me very few answers. However, he told me that the books currently in Google Book Search were scanned, whether they are currently “full view” or not, but that they were not the full list of books scanned. Google has either one or two databases in addition to Google Book Search (he was confused as to the number). Five of my titles are now listed in Google Book Search (one will not come up in an author name search, only a title search), including the three entered before they went to the printer. (I only print offset books, by the way: No POD, no e-books, and no e-files transmitted to anyone except to my printer.)

In a letter to the court, probably in the objections to Settlement 1.0, the American Psychological Association complained that they sent Google a letter opting about 1,100 works out of Library scanning (instead of using the database that I used), and that Google acknowledged receipt of their letter; but as of August 2009, about 950 had been scanned anyway. The numbers I just gave are from memory.

A librarian who worked for one of the universities where works were being scanned (sorry, I don’t remember details) told me on some e-list that Google demanded such a huge supply of books so fast, that the librarians she worked with were just taking them off shelf after shelf and packing them up without making any attempt to determine copyright status.

I am not reassured by the fact that Google offered an online opt-out form for Version 1.0, yet provided no acknowledgement of online opt-out to me or to anyone else who used it (that I know of). No confirming web page to print out, no email, no postal letter. Anyone who used it will be unable to legally confirm later that they opted out of the Settlement. I also sent a letter by certified mail to Rust Settlement. I sent another opt-out letter after Version 2.0, which additionally listed my magazine articles, and cc’d it to the court, in case Rust Settlement lost their copy. Many writers, however, preferred the ease of the online opt-out.

Victoria Strauss, one of the authors of the SFWA “Writer Beware” blog, said there on January 13 that Rust Settlement was ecouraging writers who opted in, to opt out specific works by emailing Rust Settlement in a “simplified” process, rather than using the scanned books database. This was a re-post of information from the Authors Guild. See:

I have not heard whether writers who opted out works this way, have received any confirmation or have been given any means to check the status of their works.

I wanted to know whether my works were scanned before I opted out of Version 1.0. I emailed Rust Settlement to ask to see Google’s database of scanned books. At the time I assumed Google would make this public, because I thought anyone claiming compensation for a violated copyright would first want to know whether it had in fact been violated. They sent me a form email saying I could not access anything unless I opted in, and only after opting in, “for fear of false claims.” So I emailed back and said I was only interested in knowing whether my own works had been scanned, I sent a them list with full bibliographic data and ISBNs, and I said, OK, I don’t insist on seeing the database, just tell me whether any of these eight books have been scanned. I got the same form email in reply.

In their complaint filed for Settlement 2.0, the French Syndicat National l’Edition said they also asked to see the full list of scanned books, and were told Google could not supply it to them because the metadata was owned by third parties.

My conviction that Google will publish all the scanned works, even those opted out of the Settlement or opted out of “display” uses, rests on two things. (1) Google has shown no evidence that they care about copyright, and every evidence that they will do whatever they want. (2) They have been talking publicly about their “Universal Library” for years (or “Monopoly Library” in the antitrust view). I think they really believe it. I think they really want every book published now and in future, and I think they really want to give readers full access by one means or another. They are motivated partly by altruism, but they are also motivated by a desire for profit.

Because the scanning project is still going on, and I doubt anyone is checking copyright dates on the books, Google has probably by this time scanned numerous books published after January 5, 2009. What will happen with them? My guess is Google will use them and wait for another suit.

Other issues: As far as I can tell, the Settlement does not cover most illustrations in books. They are often copyrighted by someone other than the author and sometimes licensed from numerous sources. So, is Google going to publish all those scanned coffee-table and art books without illustrations? Again, I suspect they will use the illos and wait to get sued.

And finally, as I’m sure you know, Google has embarked on a magazine-scanning project. I think their declaration that “inserts” are not registered with the Copyright Office unless registered separately will likely be applied to the magazine articles—which journalists very seldom register separately.

I have worked in book and magazine publishing for 25 years, and for a variety of employers. The trade consists largely of people who create or help to create books—that includes editors, graphic arists, illustrators, and others who work on books, as well as the authors. I am not saying it is not a competitive business, or that everyone in it is ethical. But the customs and ethics of the trade are, by and large, not predatory. You just don’t steal other people’s material. You know how much it would hurt you if someone stole yours. Your professional reputation would be ruined everywhere if you plagiarized. And besides, you don’t have to steal, because you believe you can always create a better book, article, etc., yourself.

But now we have entering into the publishing business, players like Google who do not create books and who see books as just a commodity, and if they can get them cheap by violating copyrights so much the better. For anyone used to working in the traditional industry, this is really new, appalling, and hard to face up to.

Regarding James Grimmelmann’s comment.
James it may be true that there was no willful intent to infringe by Google, but since the United States has stated(1) that Google’s digitization is copyright infringement and Google continues to scan the copyright works of others, than it would seem that Google is now willfully infringing the copyrights of others. I also believe that if Google was from any other country besides the United States, Americans would be hollering “Piracy”, and pressuring that country to halt or even prosecute Google.

(1)Nor is it Reasonable to think that a competitor could enter the market by copying books en masse without permission in the hope of prompting a class action suit that could then be settled on terms comparable to the Proposed Settlement. Even if there were reason to think history could repeat itself in this unlikely fashion, it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation as a means of obtaining approval for licensing provisions that could not otherwise be negotiated lawfully. [The letter {Document 720} to the Court from the U.S. Department of Justice; Pages 23-24; emphasis mine]

Oh come on, James … REALLY?! (insert SNL Seth and Amy-isms here) You really believe Google had no intent to infringe … Really?! I may not be a lawyer, but last time I checked stealing something and selling it and/or using it to turn a profit was illegal and willful intent, indeed.

It really disturbs me that you are running this website, and organizing seminars, and teaching law, and you sum up Google’s actions as “fair use”.

If you really believe that Google thought what they were doing was “fair use”, then you really need to leave your sheltered little world, spend more time on the streets, and get some sense knocked into your head.

I know Microsoft butters your bread, and you may be influenced to peddle a doctrine of free information on the internet to protect your job and keep the cash flowing from Microsoft to your college — but defending Google’s actions in such a naive way doesn’t help anybody.

Google publicly claims that it was the plaintiffs who approached Google with the idea of dropping the “snippet” suit and instead crafting an agreement to sell entire books. My guess is the agreement was quite mutual.

BUT, even if not, Google could have said, “We’re just a search engine company. We’re not a publisher, bookstore, or library. All we want to do is display ‘snippets’ and sell ads next to them. Let’s just stick to the ‘snippets’ issue and hammer out an agreement regarding that only. How large a ‘snippet’ is, does it include illustrations, do the copyright holders get any of the ad revenues, that kind of thing.”

Google didn’t do that. Instead, they spent years of time and millions of legal fees working out an agreement to sell entire books that is highly profitable to Google.

6. Google plans to reproduce the Books for use on its website in order to,
among other things, attract visitors
to its web site and generate
advertising revenue thereby.

7. Google knew or should have known that the Copyright Act, 17 U.S.C. §
101 et seq. (“the Act”) required it to
obtain authorization from the holders
of the copyrights in these Books
before creating, distributing and
reproducing digital copies of the
Books for the University of Michigan
library and other libraries providing
Books to Google, for its own
commercial use and for the use of
others. — Third Amended Complaint

The issue has never been solely about scanning books to make a searchable index, as a service; it has also been about Google’s plans to exploit those scans commercially for its own gain.

In case this is not blindingly obvious, I will add that if Google’s vision changed from “snippets” to “entire books” after the Author’s Guild and the Association of American Publishers proffered that idea, Google continued scanning books for a couple of years after changing that vision.

Also, I agree with Douglas that when the Justice Department officially calls Google’s scanning a deliberate copyright violation, the JD does not make that statement lightly.

Douglas, although it is most unfortunate for countries outside the US that this is an international issue, it is very fortunate for US authors to have foreign authors on our side.

Another issue is that “fully participating libraries” were (according to contracts I saw posted) given scans of not only the copyrighted books in their own libraries, but those of all the other “fully participating libraries,” amounting to a huge acquisitions windfall of copyrighted books (as well as books in the public domain). Or rather not a windfall: Google used the scans to pay these libraries for being lent other books to scan. And Google also gave at least some of these libraries long-term free database subscriptions (25 years to the University of Michigan multi-campus library system). These databases would contain many books not yet published. This is another way in which the Settlement (which does not pay copyright holders for any trades, only sales) and private contracts with Google are circumventing copyright law.

A library’s mission is to allow readers access to entire books, not just “snippets.” I have never heard it called “fair use” for a library to acquire a copyrighted book to lend out by photocopying or scanning it, instead of buying it from the publisher or on the used book market. Many of the millions of books scanned are available on the new or used market. There was never any intent to pay publishers or authors for these books and the Settlement does not do it either.

Even if the libraries do not intend to display copyrighted books to the public as long as they have viable print copies, there are two issues. (1) As far as I know, it is not fair use to replace a worn-out copyrighted book with a scan instead of buying a legitimate copy available on the new or used market. (2) The individual libraries, and possibly also the Hathi Trust, are likely to have far less server security than Google, making it more likely that some hacker can “release” millions of copyrighted books to the public and thereby destroy their sales value.

I’ve heard numerous reports from NWU members and other authors (one example can be heard on the podcast of the NWU information session for writers in Berkeley a week ago) that they have been able to view full text of books to which they owned the electronic rights (or at least where they had right of approval or notice of e-rights licenses), without their having given permission or received notice that the print publisher had done so, without their having received any share of revenues, and in some case after they had (a) made a “request” to Google through the settlement administrator that their book not be scanned and/or displayed and/or (2) opted out of the proposed settlement.

The opacity of Google’s scanning and its “agreements” with print publishers and libraries (I use “agreements” in quotes because many of them are likely invalid as being in violation of authors’ copyrights and/or print publishers prior contractual commitments to authors) make it difficult or impossible, in most cases, for authors to determine without litigation whether the display of their book was undertaken (a) by Google on its own initiative, or (b) on the basis of purported permission from another claimant to the e-rights (e.g. a print publisher who “authorized” this through the Google Partner Program).

In the latter case, the liability for copyright infringement (whether civil or criminal) would presumably lie with the print publisher, and Google could avoid liability as long as it (a) could successfully claim that it relied in good faith on the print publisher’s claim to hold the relevant rights, and (b) responded properly to a DMCA copyright infringement notice (use of which would course be one of the most important rights given up by any author who didn’t opt out of the settlement).

While it’s unclear to me to what extent this has already happened with Google, it is clear that it has happened on a massive scale with Amazon, first with “Search Inside The Book” (the predecessor and precedent, although it’s often been overlooked in the Google Books debate, for book scanning and display, albeit of full pages rather than snippets and thus with a vastly weaker possibility for a “fiar use” defence) and then with Kindle Editions.

There have been similar problems of opacity: Amazon’s contracts with publishers purporting to authorize full-page display through “Search Inside…” contain a clause purporting to forbid disclosure of their terms to authors. I suspect that the same may be true for Amazon-print publisher contracts for Kindle editions.

Many authors have discovered only after the fact that pages or entire chapters of their books have been made available through “Search Inside…”, or that Kindle editions of their books have been “authorized” by print publishers without their knowledge or consent, and/or that they are being paid only the print book “sale” royalty percentage on these revenues, not the percentage applicable to licenses of electronic or other subsidiary rights.

I don’t think most “buyers” (licensees) of Kindle editions realize that many, perhaps most, of these e-books are bootleg editions (“authorized” to Amazon by print publishers who didn’t own the relevant rights) and/or that the author is getting paid, if anything, only a small fraction of the share of the purchase price to which they are contractually entitled.

The Google Settlement attempts to rewrite international as well as US copyright laws. But let’s stick to US copyright law, under which creators of works have no legally granted “moral rights.” However, there are factors we can complain about.

(1) Someone used our work without our permission for their own commercial gain.

(2) Someone gave away our work without our permission and destroyed its current or potential market.

I agree with you, but according to self-publishers who have total control over their works, another issue is that some Kindle editions are pirated. The pirate creates a Kindle file, from whatever source, and sells it as long as they can before the copyright owner (who never published any Kindle edition) notices and has Amazon remove the listing. Amazon itself will do a take-down when asked, but reportedly makes no attempt to discern whether this is a legitimate Kindle edition at the time it is offered for sale. In this case, an author with another publisher would not know whether the problem was their publisher’s seizure of e-rights, or their publisher’s failure to police Amazon listings regularly.

I agree with you, but according to self-publishers who have total control over their works, another issue is that some Kindle editions are pirated. The pirate creates a Kindle file, from whatever source. Reportedly the source is often Search Inside files, but of course it does not have to be. The pirate sells it the bottleg Kindle book as they can before the copyright owner (who never published any Kindle edition) notices and has Amazon remove the listing. Amazon itself will do a take-down when asked, but reportedly makes no attempt to discern whether this is a legitimate Kindle edition at the time it is offered for sale. In this case, an author with another publisher would not know whether the problem was their publisher’s seizure of e-rights, or their publisher’s failure to police Amazon listings regularly.

It sounds like anyone about to deal with the licensing of a copyright they own, should be thinking twice about what is not written in the contract they are about to sign.
And Anyone about to seek a copyright for just about anything should be thinking twice; should they just keep it a secret until the dust settles .

Deep breath, everyone. The misinformation and misunderstanding of the legal and business issues surrounding the original Google Library Project and the evolving proposed settlement agreements in these comments are making reasoned discourse difficult. I would advise everyone to re-read before posting Jonathan Band’s “Long and Winding Road” essay (at http://www.jmripl.com/Publications/Vol9/Issue2/Band.pdf), in which he amplifies James’s reasonable conclusion that the the original Google Library Project was a fair use under American law (even though Google might have included the index in its commercial services). Band does an excellent job of explicating how the Google project was initially conceived to respect the limitations imposed by copyright (in fact, I would say over-respected, since they offered opt-out options not required in law), but then used the opportunity presented by the Authors Guild suit to develop, with the permission of those copyright owners who did not object, more expansive products.

One example of the overreaching in these comments: DOJ suggested that someone scanning books and making them available as full-text would be a copyright violation. Everyone - including Google - would agree with this, which is why Google has sought permission to do it. DOJ has not said that what Google has done is a copyright infringement.

Google continued scanning books for about two years, by my count, after the project had deviated from the “original purpose.” And we have only Google’s word that was their original purpose, not simply a declaration to avoid prosecution for copyright infringement.

After Google decided to publish entire books, Google went right on scanning books. They made no attempts to locate the copyright holders. They did not require participating libraries to check copyright dates in the books submitted. They offered copyright holders “opt-outs” from the scanning project, but did not honor them.

Google did not advance a new proposal to publish entire books on an opt-in basis, which is required by US and international law. They scanned the books, and presented the project to copyright holders as a fait accompli, with a Settlement/contract that cannot be negotiated by the vast majority of the copyright holders who they tried to bind to it by mere fact of having had a work published before January 5, 2009. Google has not even published or agreed to publish a list of the scanned works, to enable copyright holders to know if their rights were violated, and to alert owners of specific out-of-print works that Google intends to republish those works and sell rights to them to other parties.

Google did not adhere to their original “snippets” project—if indeed that is all it was intended to be—and they did not act in good faith.

If Google had an original or revised vision that ecompassed publishing entire books, why did they not craft an attractive opt-in contract, advertise it widely, and scan the books only after the copyright holders opted in?

I will add that I consider the opt-out deadlines of the Settlement, even the extended one for 1.0, to be entirely unreasonable. Many US authors of in-print books were just hearing about the Settlement for the first time in late January 2010, and I suspect many still not have. Various non-US groups are complaining to the court that the notification situation is even worse outside the US.

The Settlement seems based on the assumption that only Google can commercialize out-of-print works. In fact, this is a time when many authors and heirs of older works should be taking a hard look at those works and saying, “Are other publication options available? Would a conventional book publisher like to pick this up? I’ve heard self-publishing is easier now, perhaps I could do it?”

The Settlement required heirs of out-of-print works to first legally discern or agree on who is the heir, often a slow and/or combative task. THEN, what anyone with a work for which renewed interest was shown, should have done is to send it around and see if someone else would make a better offer than Google’s, including possibly first finding an agent and learning about the publishing business.

The opt-out deadlines seemed designed to railroad everyone before they had time to understand the different options available for the work. There’s also a strong element of threat; many authors opted in because they assumed Google would use their work even if they opted out.

First, it is not yet clear how many works “opted out of Library scanning” with Google’s handy little database were scanned, but an increasing number of writers are popping up on e-lists to say, “They scanned mine anyway.” Given that Google’s public database of public-domain books is a complete mess regarding titles of works, volumes and editions the scan is of, and the like, and given similar complaints like Diana Kimpton’s about Google’s hidden database of copyrighted books:

I doubt Google paid the slightest attention to those opt-outs.

Second, the “choice” of the “better terms” in the Google Partner Program agreement is illusory or at least, probablu temporary. In the fine print, Google reserves the right to change those terms at any time after you enter the Partner Program, without notifying Partners either before or after the change.

“The Society of Authors isn’t the first authors “organisation to send a letter supporting the Settlement. ALCS (UK authors licencsing and collecting agency) wrote in support of the original version. I belong to both organisations and neither of them consulted their members before taking this action.”

Diana

The ‘informing and consultation’ process in Australia was:

The Australian Authors society held two meetings.
They took place in the middle of January 2010, a month or so after the first sending of emails to those on the mailing list.

These two meetings were in Sydney and Melbourne, these two state capitals are 500 miles apart. Melbourne in january is often near 100 degrees F at midnight . Sydney is, in January mostly at a party ‘somewhere’.
Australia has 5 state capitals and The National Capital City ; Canberra.
One of the other state capitals is the capital of western Australia; Perth. From Sydney to Perth is the same distance as London to Moscow. One of Australia’s leading Authors lives in western Australia. Another famous author is a famously private, non email, sort of man who often when writing hides away at a place about 100 miles away from another state Capital; Brisbane. Brisbane is about 800 miles from Sydney and thus about 1300 miles from Melbourne. The National capital of Australia; Canberra, is home to the Australian National University. Canberra is 200 miles from Sydney and
300 miles from Melbourne. In January you could fire a gun down the concourse of ANU/ or in the parliament chamber and not hit a soul.

Gillian, I have learned so much from you postings and web site that it seems only right to respond to your question.

You wrote initially, “A big problem for those who want to argue that Google’s original plans for its Library Project were not infringing is the clear evidence unearthed and published several years ago by Daniel Brandt that Google’s intention right from the start was to monetize its scans by serving advertisements alongside views from the books.”

Just because Google planned on showing ads next to the snippets does not mean automatically that the use is not fair. Look in particular about what Band has to say about the courts’ ruling in the ArribaSoft and Perfect 10 cases, where the commercial nature of the indexes did not alter the underlying fair use of the library material. The real question is whether copyright owners suffered any market harm by Google’s actions. Band on p. 259 concludes that they probably did not:

…compiling such an index without
obtaining the rightsholders’
permission would not have hurt the
owners in any discernable way,
provided that the search results
display only snippets of text. It
would not have diminished the market
for the books, nor would it have
prevented licensed digitization
projects that provide users with more
text for a narrower range of books.
Google further reduced the possibility
of harm by permitting rightsholders to
opt-out of the Library Project
altogether, or to opt-in to the
Partner Program.

Of course the plaintiffs disagreed, which is why they filed suit. But as the citations that James Grimmelmann provided demonstrate, there are plenty of people who think that Google’s indexing, even with the intent of building a commercial index supported by advertisements, would be legal.

If James is right and the settlement collapses, we may actually find out. I will be interested in hearing lawyers and professors (which I am not) opine on whether it is wise for either side to see this through to trial.

The issues of fair and unfair use have been manipulated into an stalking horse. There are other paths that could have been taken.
The compulsory transfer of millions of individual rightholders individual rights of control of usage(in many cases without their knowledge) to a sole agent, to ‘manage’, needs strong justification. It needs to very big problem and it needs to be the only path.